The ObamaCare Arguments – The First Day

It triggered a law school flashback. Once again, I was in my least favorite class, federal tax law, listening to a discussion so arcane and bureaucratic that it was hard to stay awake.

I speak, of course, of today’s 90 minutes of argument before the Supreme Court. At issue: whether the Anti-Injunction Act (AIA) bars the court from considering this challenge to ObamaCare until the plaintiffs have actually been forced to buy insurance or pay a penalty for not doing so.

Don’t get me wrong. The lawyers did a good job presenting their particular sides of the arguments. But it was very clear from almost the beginning that none of the justices are inclined to use the AIA as an excuse for not tackling the substantive issues at stake in this case.

Even the liberal justices were having trouble with the position advanced by Robert Long, the private attorney appointed by the justices to argue that the AIA bars the suit. The AIA prevents prospective lawsuits from being filed before a tax has been assessed or paid. As Long appropriately put it, the AIA is a “pay first, litigate later” rule. But neither Congress nor the president had given Long much to work with in making his arguments since they consistently referred to the penalty an individual has to pay if he fails to buy a health insurance policy, not a tax. Only if the Supreme Court decides that the punishment is a tax will the AIA bar the lawsuit.

As Justice Breyer pointed out to Long, however, Congress had “nowhere used the word ‘tax.’ What it says is penalty.” As Justice Ginsburg, who many people classify as the most liberal member of the Court, said, the penalty was intended to make people buy health insurance to avoid paying a fine to the government. A similar federal law modeled on the AIA “does not apply to penalties that are designed to induce compliance with the law, rather than raise revenue.” According to Ginsburg, the penalty in the ObamaCare law “is not a revenue-raising measure because, if it’s successful, … nobody will pay the penalty, and there will be no revenue to raise.” Justice Sotomayor joined in, saying, “Here we have one where the Congress is not denominating it as a tax; it’s denominating it as a penalty.”